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SPEECH 

OF 

HON. J. E. BAILEY, 

OF TENNESSEE, 


OF A STATE TO REPRESENTATION 
IN THE SENATE. 




DELIVERED IX 


THE SENATE OF THE UNITED STATES, 


Friday, April 23,1880. 





SFOFFORD vs. KZELLOaG, 


FROM LOUISIANA. 



O 









SPEECH 


HON. J. 


E. BAILEY. 


The Seriate having under consideration the resolutions declaring that William 
P. Kellogg was not elected and that Henry M. Spofford was elected United 
States Senator from the State of Louisiana for the term begining March 4, 1877— 

Mr. BAILEY said: 

Mr. President : The credentials of William Pitt Kellogg as Sen¬ 
ator from the State of Lonisiana for the term of six years beginning 
the 4th day of March, 1877, and signed by Stephen B. Packard, who 
claimed to be the governor of the State, Avere pre.sented to the Sen¬ 
ate on the 20th January, 1877. On the 4th of March of the same year 
Mr. Kellogg applied to be sworn in, but the Senate then refused to 
admit him. In the month of October the credentials of Henry M. 
Spofford, claiming the same seat, and signed by P. B. Nicholls, then 
actually governor of the State, were presented. 

These credentials were referred by the Senate to its Committee on 
Privileges and Elections, and on the 26th day of November, 1877, a 
majority of the committee reported that on the merits of the case 
Kellogg was entitled to the seat, and the Senate admitted him to it 
on the 28th of t he same month. 

The Legislature of the State of Lonisiana solemnly protested against 
the action of the Senate, as a denial to the State of its right to rapre- 
sentation in this body by a Senator chosen by the Legislature thereof 
as guaranteed by the Constitution of the United States, and in March, 
18711, Mr. Spofford presented the memorial, and complained that upon 
the former hearing before the committee he had been denied the privi¬ 
lege of introducing important testimony. He further claimed that he 
had discovered new and material evidence which would establish 
that when the Legislature was elected in 1876, Kellogg, then the 
governor, used the power, patronage, and resources of his office to pro¬ 
cure the election and return of a general assembly for the purpose of 
securing his election to the Senate, and afterward by menaces and 
bribery secured the vote of its members, and that but for such menaces 
and bribery he could not and would not have obtained the nominal 
election under which he claims the seat. 

This memorial was referred by the Senate to its committee and au¬ 
thority given to it to take testimony, and to send for persons and 
papers. • The committee has reported that Spofford is entitled to the 
seat, and thus is brought to your attention and before the Senate, 
and for its judgment, the important question to be discussed. 

As one of the committee that made the report, I give to its recom¬ 
mendation my unqualified approbation and support. I do not pro¬ 
pose to go into an examination of the facts now for the first time 
brought to light, which disclose a state of public and private morals 
among the men who composed what is known as the Kellogg legisla¬ 
ture disgraceful beyond all that could have been imagined, nor will 



4 


I even make an allusion to the acts of bribery and corruption of which 
the book of testimony is full. I prefer to examine the case from a 
different point of view. 

I believe Mr. Sx)off‘ord was elected in conformity with the com¬ 
mands of the Constitution and laws of the United States, by the only 
body that could justly claim to be the legislature of the State, and 
propose. Senators, for a little while to discuss the very interesting 
questions that the conclusion presents. 

But in the very outset it has been said, and the x)oint has been 
pressed with great earnestness, both by the counsel for Mr. Kellogg 
and by the minority of the committee, that all the questions of law 
and fact involved were presented upon'the former reference, were 
solemnly adjudicated by the Senate, and having been adjudged are 
not open to inquiry. It is said that the former action of the Senate 
is conclusive upon"the parties and the State of Louisiana as to every 
fact and every question that could have been considered, and invok¬ 
ing the aid of the maxim familiar to lawyers, and of frequent use in 
courts of judicature, that interest reii)ul)licce ut sit finis litium,” it 
is contended that the matter in controversy is “ res ad judicata," and all 
the world is estopped from denying Mr. Kellogg’s right to the seat. 
To afford a foundation for this extraordinary effort to ingraft upon 
the proceedings and practice of a legislative body maxims and pleas 
that have been adopted from considerations of convenience by courts 
instituted for the settlement of questions of private right, it is asserted 
that the questions raised are legal questions, and that in respect to 
the matter under consideration the Senate is a judicial tribunal. 

I readily, indeed heartily, agree to the first proposition. This con¬ 
troversy does present grave questions of law—of public and consti¬ 
tutional law—questions that should provoke the most thorough dis¬ 
cussion in this Chamber and throughout the whole country; they 
should interest not only you. Senators, but every statesman and jur¬ 
ist and citizen; and I cannot believe that any one here will dare 
approach their consideration without painstaking research and the 
calmest and most conscientious self-examination. 

But I dissent and toio ccelo differ from the gentleman as to the last 
proposition. 

The Senate is not and from its very constitution cannot be a ju¬ 
dicial tribunal. The fundamental law that provides for its creation 
undertook to parcel out the powers and duties of the different de¬ 
partments of the Government, and separated them into three great 
divisions : the executive, the legislative, and the judicial. To each of 
these was allotted the work it is to perform, and each has its appro¬ 
priate functions. 

All legislative power— 

Says the Constitution— 

herein granted shall be vested in a Congress which shall consist of a Senate and 
House of Representatives. 

And again it provides: 

The judicial power of the United States shall be vested in one Supreme Court, 
and such inferior courts as the Congress may from time to time ordain and estab¬ 
lish. 

By another section one exception is made, if indeed it be an excep¬ 
tion, to this grant of judicial power. Great officers of state may be 
impeached by the House of Representatives for high crimes and mis¬ 
demeanors, for crimes affecting the public welfare, for crimes con¬ 
nected with the administration of affairs, and, perhaps, for crimes 


5 


that prove them unworthy to till great political stations. If thus 
impeached the Senate has the sole power to try them, and when sit¬ 
ting for that x>urpose as a court Senators shall be “ on oath or affirma¬ 
tion.” The punishment is political, and political only. It can extend 
only to “removal from office and disqualification to hold and enjoy 
any office of trust or profit under the United States.” 

With the exception named, the judicial power of the United States, 
and if the Constitution means anything, its entire judicial power is 
vested in the supreme and inferior courts. To them is committed the 
authority as judicial tribunals to construe, to expound, and to ascer¬ 
tain the law, and to enforce its commands in controversies of every 
kind subject to their jurisdiction. In these tribiinals resides the judi¬ 
cial power of the Government, and by them the axiom and rules relied 
upon have been borrowed from like tribunals of our mother country. 

The Senate, however, is a legislative body. Its office and functions 
are political. It is true that in the or^^uary course of its procedure 
each Senator, and the Senate as a body, may find it necessary to con¬ 
strue laws and pass nj)on legal questions of the most abstruse kind, 
but this is only for the purpose of instructing the mind and conscience. 
The act is a step in the j^erformance of a political function. 

So, where the Senate is called upon to judge as to the election of 
one of its own members, it may have to settle doubtful questions aris¬ 
ing under the Constitution and laws of the United States, or of the 
State that seeks rei)resentation. In such case the Senate is the judge of 
the election. That is, it must determine aud decide upon every fact 
presented and every question of constitutional or statutory law that 
may arise. In discharging this duty the Senate is a court, as every 
jurisdiction, civil, criminal or ecclesiastical, is a court. It is a court in 
the sense that the Legislature of Massachusetts is “ the general court,” 
or that the general assembly of the Presbyterian church is a court. 

Although it judges or decides, aud in the sense described is a court, 
its proceedings are not judicial, nor is it or can be a judicial body. 
It is a legislative body with inherent as well as constitutional au¬ 
thority to judge or decide who shall be admitted to take part in its 
deliberations and share its responsibilities. In exercising this func¬ 
tion it may be called upon to consider the relations of a State to the 
Federal Government, to in quire into and decide upon the right of the 
people of a State to settle their own government, or upon the regu¬ 
larity of the acts and proceedings of a State Legislature; but these 
questions at last concern only the body-politic; they relate to govern¬ 
ment, to the constitution of the Senate as a legislative body, and to 
the lawfulness of representation. The duty to be j^erforraed, in the 
broadest as in the strictest sense, is political. 

Upon what theory of government or what construction of the Con¬ 
stitution, then, can it be affirmed that in deciding upon a question 
like the one before us this becomes a judicial body, or the proceed¬ 
ing a judicial proceeding ? The Constitution has not so declared. 
Indeed it has expressly committed to other tribunals all the judicial 
power of the United States, with the exception of the trial of officers 
impeached by the House of Eepresentatives. Whence comes, then, 
the assumption of judicial power, with its concomitants of judicial 
methods, maxims, and rules ? Certainly not from the Constitution. 
Will any one here undertake to point out the section or clause that 
justifies it? 

Has the assumption any foundation in reason ? Let us not be mis¬ 
led by a confusion of terms. Judicial power and judicial methods 
are one thing. The duty of every tribunal to decide fairly, justly, 


6 


honestly every question that may be brought before it is quite a dif¬ 
ferent thing. The Senate rests under the highest obligation to so¬ 
ciety as do the courts to uphold and maintain in all their purity the 
Constitution and laws, the rights of the Federal Government and of 
the States. No Senator can escape the performance of the duty this 
obligation imposes. It binds his conscience and compels recognition. 
But does the endeavor to perform this duty change that whioh is a 
legislative body into a judicial tribunal and impose upon it the forms 
and methods, the rules of i>rocedure and maxims of the latter? Is a 
Senator himself transformed into a judge because he may be called 
upon to decide a question of law, and attempt to decide it with judi- 
dicial impartiality ? 

No, Mr. President, the claim cannot be maintained. It has no war¬ 
rant in the Constitution. This is a legislative body, not a judicial 
tribunal; its functions are mlitical and only political. As a legisla¬ 
tive body it may adopt rules® f its own to regulate its procedure, and 
facilitate the transaction of its business. But such rules are self-im¬ 
posed ; they cannot be imposed by others; they must be of a kind 
recommended by inherent propriety and a just regard to the object 
to be reached. They must help, not hinder, the attainment of jus¬ 
tice and compliance witli every constitutional obligation. 

Nor is there any reason why this rule of res adjudicata shall be 
transplanted from another forum and made to take root here. 

Natural justice makes no demand for its adoption. That requires 
justice to be done even after tlie delay of repeated litigation. It 
seeks to reach the real merits of every controversy, and with stern 
resolve redress every wrong. But inasmuch as human reason is im¬ 
perfect the testimony on which it relies is often misleading, and its 
methods of investigation are defective, and as in the lapse of time 
the memory of facts becomes obscured, courts of judicature in the ordi¬ 
nary course of their business for the good of society, as well as their 
own protection, adopted the maxim quoted and formulated it into 
an ordinance of administration. 

Experience, however, soon demonstrated that injustice and wrong 
were often the result of the application of the rule, and the courts 
without abandoning the rule itself were compelled to invent methods 
of relief, and the Legislature has given them willing assistance. 
Hence we have in courts of law retrials and writs of error, and in 
courts of equity rehearings and bills of review supplemented by stat¬ 
utes in proper cases granting appeals, and appeals in the nature of 
writs of error. All these methods of relief are in daily use to escape 
the grinding effects of a rule which it is proposed to import into a 
legislative body acting upon a question purely and simply political. 
And yet it is not proposed to bring with it the methods by which the 
harshness of its effect may often be avoided. 

If the inatter under consideration was one that affected only the 
l ights of jSIr. Kellogg and Mr. Spofford there would be much "force 
in the argument favoring the adoption of the rule. If this was a 
controversy as to w’hichof the two gentlemen should enjoy the emol¬ 
uments and be entitled to the dignity and honor of a seat in the 
Senate of the United States, the Senate might well say, indeed, hav¬ 
ing regard to the gravity of its duties and its responsibilities to the 
public, it should say : “ It does not comport with the dignity of this 
body or vvith the imblic interests that the controversy shall be pro¬ 
longed.” The Senate should dismiss the application and proceed to 
perform other and more important duties. This is not such a contro¬ 
versy ; it is one in which the State of Louisiana and the whole people 


7 


of the United States are interested. It involv^es grave questions 
public and constitutional law and reaches to the very foundations on 
which our frame of government rests. It involves"the relations of 
the States of this Union to the National Government; the rights of 
the States and of the people of all the States. 

One of the States appears at the bar of the Senate and demands 
that her constitutional right to representation shall be respected. 
She says that by mistake or fraud or a wrong decision one has been 
admitted here as her representative who in fact is not her representa¬ 
tive, and demands redress. She says that she is prepared to demonstrate 
the fact to the satisfaction of the Senate and the whole country. But 
to this earnest appeal it is proposed to reply : What you say "may be 
true. The one you have chosen may have been rejected; another 
person, a stranger and an alien to your confidence may occupy the seat 
prepared by the Constitution for your own accredited representative ; 
he may have mounted to this great position by fraud, by deceit, by 
our own mistake, but we cannot revise or reverse our action. We are 
fettered by a rule borrowed for the occasion from another tribunal, 
and the whole matter is res adjudicata. 

Mr. President, such a reply is a denial to the State of a right guar¬ 
anteed to her by the Constitution. The right cauuo.t be questioned. 
No statesman or jurist in this broad land has ever questioned it. No 
one ever will. Has the former action of the Senate annulled it ? 
Can that action annul it ? Has the right been merged in a former 
judgment, or hidden out of sight so that it cannot be discovered? 
Not at all. It is a constitutional right, and continues until satisfied. 
It can be satisfied only by recognition. It continues from day to day, 
from month to month, from year to year. It speaks to-day in tones 
as earnest and in voice as exacting as it did two years ago. A wrong 
judgment of the Senate cannot hush it into silence, nor can the plea 
of res adjudicata be accepted as its fulfillment. 

To give such an effect to the plea places the Senate above the Con¬ 
stitution, and makes it the constituent instead of the Legislature of 
the State. Such an answer declares that although the former judg¬ 
ment may have been the result of a conspiracy, or fraud, or mistake, 
now patent to all the world, yet its effect is binding and conclusive. 
It declares that the State may be robbed of its right, its constitu¬ 
tional right, to representation, not because of any fault or error of 
its own, but because somebody else has been in fault, or has been 
imposed upon. Such a doctrine is monstrous. Its only foundation 
is the desire to exalt the dignity and value of the judgment of this 
body and escape the duty to perform a constitutional obligation. 

Nor can the failure to perform this obligation be excused on the 
miserable plea that there is danger in the precedent. If Mr. Kel¬ 
logg was duly elected by the true and lawful Legislature of Louisi¬ 
ana we should be eager to confirm him in possession of his seat and 
repel every effort to remove him. On the other hand, if Mr. Spofford 
has been elected by the true and legal Legislature, we should make 
haste to admit him to this body. Absolute justice requires this to be 
done. The Constitution requires it. A wrong decision is always a 
dangerous one, and may become a bad precedent; but a right decision 
always stands as its own justification. Bad men may seek to pervert 
it to a bad use, but good men will always b6 found to vindicate the 
principles upon which it rests and strip away every disguise from the 
motives of those who dare profane it. 

But have we any precedents to instruct us in our deliberations or 
guide us in our action ? After a good deal of research I have not 


8 


been able to find one that presents the very case before us, or that 
in the principles settled can be considered as fairly expressing the 
opinions of our predecessors upon the questions now to be determined. 
Only three cases can be found in our legislative annals where the 
action of either House of Congress in seating members after exami¬ 
nation in solemn form by a committee has been called in question. 
Nor is it strange that the number of such cases is so small. Inquiries 
into the election of Senators and Kepresentatives have been made 
usually with great care. Every fact has been brought to light 
through the diligence of the contestants, and every question of law 
involved has been thoroughly discussed by some of the very able 
lawyers and statesmen at all times to be found in Congress. The 
contestants have been satisfied by the judgments pronounced, or 
else, owing to the temper of party majorities, they have been con¬ 
vinced that further contest would be useless. 

The earliest case arose in the House of Representatives in the year 
1837. Gholson and Claiborne had been elected to the House from the 
State of Mississippi, at an election held under an order from the gov¬ 
ernor of that State, to serve at a special session of Congress, con¬ 
vened by proclamation of President VanBuren. The credentials of 
these gentlemen were referred to a committee who after an investi¬ 
gation made a report. The House declared them to have been duly 
elected and entitled to hold their seats for the two years prescribed 
by the Constitution as the term of office for members of that body. 
They were admitted and sworn. At the regular session of Congress, 
beginning the first Monday in December of the same year, Messrs. 
Prentiss and Ward, who had been elected at the time prescribed by 
the general law, appeared and claimed the seats. The whole subject 
was again referred to a committee which made a report. It was con¬ 
tended in behalf of Gholson and Claiborne, as is contended here, that 
the whole question had once been submitted to the House for its judg¬ 
ment, that judgment had been pronounced after a full considera¬ 
tion, and the matter was res adjudicata. But the House refused to rec¬ 
ognize the validity of the plea, and held that notwithstanding the 
former judgment its power again to consider and determine the ques¬ 
tion was plenary. It rescinded the former judgment and ejected Clai¬ 
borne and Gholson from their seats. Prentiss and Ward, however, 
were not admitted; the people were required to have another elec¬ 
tion. 

The next case in our legislative history came up in the Senate from 
the State of Indiana in 1857. Messrs. Bright and Fitch, claiming to 
have been chosen Senators by the Legislature of that State, presented 
their credentials, which were referred to a committee. The com¬ 
mittee reported that they had been duly elected, and the Senate so de¬ 
clared. 'Two years thereafter a memorial was presented from the 
Legislature of the State protesting against the former judgment, ask¬ 
ing that it should be reversed and that two other gentlemen chosen 
by that Legislature should be admitted as Senators. Again the sub¬ 
ject was referred to a committee, which reported that every fact then 
presented and every question of law then raised had been presented 
and raised upon the former hearing, and upon the recommendation 
of the committee the Senate voted that the case was res adjudicata, 
that the former judgment was final, and concluded the parties, the 
State of Indiana, and the whole world. 

It appears that there was no question about conflicting govern¬ 
ments in the State. The Legislature that elected Bright and Fitch 
was conceded on all sides to have been the legally organized Legis- 




9 


latnre of the State. The only matter in controversy related to the 
regularity and lawfulness of the manner of the election. The vote 
stood thirty in favor of the report to fifteen against it. But in the 
minority stood the late Senator Chandler, Mr. Collamer of Vermont, 
Mr. Douglas of Illinois, Mr. Fessenden of Maine, Mr. Hamlin, now a 
Senator, Mr. Seward of New York, Mr. Trumbull of Illinois, and Mr. 
Wilson, afterward Vice-President of the United States. These gen¬ 
tlemen held to the same opinions that I advocate to-day in regard to 
the validity of the plea interposed. They were persons of the great¬ 
est reputation, and their opinions are entitled to great weight. Their 
arguments furnish much of the reasoning advanced here to-day. 

Again the question was presented to the Senate in the year 1874 in a 
contest between Spencer and Sykes, each of whom claimed to have 
been chosen by the law ful Legislature of the State of Alabama. In that 
State, as in Louisiana, two bodies were organized and claimed to be 
the lawful Legislature. One of these bodies chose Spencer; the other 
chose Sykes. Both gentlemen appeared here and claimed the seat. 
Their credentials, according to the rules, were referred to a commit¬ 
tee, a majority of which reported in favor of Spencer. The Senate, 
by a party majority, sustained the report, and Siiencer was sworn in. 
Afterward the Legislature memorialized the Senate, protesting against 
its former action, and again the question was sent to committee. A 
majority of the committee reported that the former judgment of the 
Senate was conclusive, but the Senate never voted or acted upon the 
report, or the resolution that accompanied it. 

It thus appears that the general question as to the force and effect 
to be given to the judgment of a legislative body in deciding upon 
the election of one of its members has once been settled by the Senate 
and once by the House of Representatives, and that the two decisions 
are direcniy antagonistic. 

The Senate has affirmed that the judgment is conclusive; the House 
has refused to be thus bound. 

The proposition that such a judgment is to have the same force and 
effect as the decree of a judicial tribunal settling a question of private 
right, to my mind, borders upon absurdity. Yet I will agree that if 
there had been such a line of decisions extending through a course of 
years, I would not only doubt the correctness of my own opinion but 
w’ould accejit these decisions as part of our parliamentary law. Ac- 
ceptingthem as parliamentary law, I would upholdand maintain them. 
But we have no such line of decisions. As we have seen, but two cases 
have been decided. When we examine into the facts we find that 
' neither of them is like the one under consideration. In the Indiana 
case the Legislature that elected Bright and Fitch w^as acknowledged 
by everybody to have been the only true and lawful Legislature of 
the State. No other body of men opposed its claim. The question 
presented was whether that Legislature had proceeded in a regular 
manner to the election of Senators. The Senate held that the manner 
of election was proper and that Bright and Fitch had been duly elected, 
that is conformably to law, by the only organized political society in 
the State of Indiana. Having once settled a question, relating only 
“ to manner,” the Senate declined to reverse its decision. So in the 
Mississippi case the regularity of the election only was involved. The 
House, however, did “ rescind^’ its former judgment. 

The case before us is altogether different. No question as to form 
or manner is presented. We.affirm that the State is_ denied repre¬ 
sentation and that the plea, if sustained, will retain in the Senate 
one who represents no government and was elected by a body that 


a 


10 


was not a legislature, has never been recognized as a legislature by 
any authority State or national, and was no better than a mob. If 
the plea shall be sustained, Mr. Kellogg will owe his election to the 
Senate, and not to the Legislature, as many of his adherents owed 
their election not to the people, but to returning boards. 

If we shall fail to establish the marked differences between this 
case and the one referred to, if we shall fail to show that the Legis¬ 
lature that elected Mr. Spoffbrd was the true and lawful Legislature 
of the State, the only body that could—we go further and say the 
only body that did—exercise legislative power in Louisiana, then un¬ 
questionably Mr. Kellogg is entitled to the seat and Spoffbrd should 
be repelled. 

The issue is plain; it is distinct; everybody can understand it. It 
is stripped of all maxims and all pleas. It is a question of fact and 
of constitutional law. The underlying principles involved are easy 
of comprehension ; the dullest mind can understand them. Such an 
issue is suited to the genius of our i)eople. I invite their candid at¬ 
tention. 

But I beg not to be misunderstood,. I do not assert that the Sen¬ 
ate rests under the obligation to reconsider and rehear every case of 
a contested election that may be brought to its notice. This supreme 
and final arbiter in the settlement of every question that may arise 
as to its organization and its constituent parts should exercise a 
sound discretion and be guided by enlightened conscience. It should 
not for light or trivial reasons set aside its deliberate judgment, nor in 
cases of doubtful right. When the power of reconsideration is invoked 
for such cases it may well say, “No; the matter has been fully and 
fairly considered ; judgment has been pronounced upon an intelligent 
view of all the facts and of every question of law. No good reason 
is shown why there shall be another investigation, anotheimrgument, 
and a'nother decision. The case has been adjudged, and there it shall 
rest.” 

On the other hand, when it is manifest that a former judgment 
was made upon a mistake of facts; that the Senate was imposed upon 
by artiffce or fraud or had reached a conclusion clearly and mani¬ 
festly wrong and in violation of the constitutional rights of one of 
the States of the Union, then there rests upon the Senate a duty 
which it should hasten to perform; the duty to correct the j udgment, to 
rectify the wrong, and restore to the State rights of which it has been 
unjustly deprived. Will not all agree to this ? Will any person here in 
this presence deny the obligation ? Will any one go before the Amer¬ 
ican people and say that a State may be deprived of its just representa¬ 
tion by a j udgment not in harmony with the Constitution ? Will any 
Senator by making false issues or by appeals to sectional differences 
endeavor to hide away the true question to be settled ? I fear, Mr. 
President—and the history of the past ten years does not quiet my ap¬ 
prehensions, the report of the minority of the committee, sustained 
by no fact, but dealing in menaces, gives additional ground to fear— 
that such will be the course taken to-day. 

Warning has been given that the action of Senators from the States 
engaged in the rebellion will be subjected to the severest criticism. 
We have been told in effect that we are expected to maintain the 
claim of Mr. Kellogg, or else to be considered false to duty, disloyal 
to the Government, and unworthy of the generous confidence re¬ 
posed in us by the great body of the people of the North. We recog¬ 
nize the obligation which that confidence imposes. Patriotism, honor, 
self-interest, every motive that can control the actions of men, unite 


C 


11 


In constraining ns to faithfully keep “ our vows,” to uphold the Con¬ 
stitution and laws, and do all that men can do to promote the glory 
and prosperity, the peace and happiness of our common country. We 
have no other country. Here we were born ; here we expect to live; 
here to die, and here will be the homes of the children who are to suc¬ 
ceed us. The great-hearted people instinctively have seized and rec¬ 
ognized these truths. Gifted with a profound insight as to the char¬ 
acter of our institutions, denied by some mysterious freak of nature 
to many of their public men, they have welcomed us back to the 
Union, not to follow blindly the opinions of others, nor to register in 
this council chamber their edicts, but to take part in its deliberations 
and assist in the conduct of aliairs. They expect us, and have the 
right to expect us, to exercise independent thought and to speak what 
w'e believe to be truth, beiug responsible, as are all the servants of 
the people, to an enlightened public opinion. 

Therefore we appeal to the intelligent judgment of our fellow-cit¬ 
izens throughout these States, and submit to them the reasons for 
our action/ If it shall be found that we have been led by party 
spirit or controlled by unworthy motives to do injustice and violate 
the sacred obligations under which we rest to uphold in all its purity 
the Constitution that gathers us here together, then upon us will be 
visited, and justly, the severest condemnation. 

Let us then inquire whether the Stale of Louisiana has been de¬ 
prived of its rightful representation here. 

The Constitution, article 1, section 3, declares that— 

The Senate of the United States shall he composed of two Senators from each 
State, chosen by the Legislature thereof. 

This clause is the very basis of our Federal Union. It is known not 
only to you Senators, but also to the whole people, that the adoption 
of the Constitution hinged ui)on these few words. States, equal in 
dignity, equal in authority, equal in the pride of sovereignty, were 
represented by delegates in the convention at Philadelphia. The 
desire for a more perfect Union than existed under the confederation 
prompted them to meet in this great council. Each of them desired 
not only to retain its autonomy but also its equal voice and equal 
share in ail the deliberations and acts of the Government to be cre¬ 
ated. Earnest and angry debate arose upon this question. The dif¬ 
ferences came near defeating the whole scheme, but at last the smaller 
States, yielding the question of rejmeseutation according to numbers 
in the House of Representatives, demanded that they should have 
equal representation in this body—that Delaware, with its single Rep¬ 
resentative, should here be equal in position, in power, and influence 
to New York with its thirty-live, and this was agreed upon. 

In the one body the people, as such, were to have representation, but 
here the States. Two Senators were to be chosen from each State by 
the Legislature thereof. Senators thus chosen, and no others, were to 
be admitted. They were to represent the people in their organized 
capacity as a political society, or, in other words, the government of 
the States. They were to represent a government republican in form, 
with all the departments necessary to the protection “ of life, liberty, 
and property;” with an executive, a judiciary, and a legislature. 
Such a State is entitled to representation in the Senate. This right 
cannot be denied. It is a constitutional right. It is not a right which 
has existed only in the past, or exists only for this day; it is a con¬ 
tinuing right, one that can never be taken away, for with so much 
jealousy was it regarded, and of such transcendent importance, that 
it is excepted from the constitutional power of amendment. Thb 


12 


State of Louisiana from the day it was admitted into the Union has 
possessed this right, and will continue to possess it as long as her Fed¬ 
eral relations shall continue undisturbed. 

And Senators to represent this organized political society must be 
chosen by “ the Legislature thereof.” The Legislature of no other 
State, nor of all the States, can make the choice. The governor of 
Louisiana, the judiciary, and the people cannot; the Senate of the 
United States cannot; the law-making power, that which is actually 
and truly the recognized Legislature, and no other, can make the choice. 
No body pretending to the authority of a legislature can choose a Sen¬ 
ator. Whatever may be the forms under which it may have organ¬ 
ized, however plausible may be its pretensions, if it be wanting in the 
one vital quality of being the law-making power of the State, its ac¬ 
tion in respect to the choice of a Senator cannot be recognized. 

Has that choice been made ? Has the Legislature, the law-making 
power of Louisiana, exercised this power conferred upon it by the Con¬ 
stitution ? Has it chosen a Senator to take his place here as the guard¬ 
ian of the interests of the State and its people, and, in conjunction 
with Senators from other States, to make laws for the nation, to shape 
its policies, and provide for the general welfare ? 

It is known that two rival bodies claimed to be the Legislature of 
the State; each contended that it had been elected according to law; 
each attempted an organization; each went through the form of choos¬ 
ing a Senator to represent the State in this place. The persons thus 
chosen are before us to-day. Who is entitled to the seat ? 

The Constitution of the United States has not created a tribunal, 
nor has it authorized any department of Government to settle a con¬ 
troversy such as arose in Louisiana. It is true the Constitution makes 
it the duty of the Government of the United States on the application 
of the Legislature, or of the executive, (when the Legislature cannot 
be convened,) to protect each State against domestic violence, and 
Congress to carry out this provision has authorized the President to 
employ the land and naval forces of the United States, and if neces¬ 
sary to call out the militia. But this is intended as a protection to 
the lawful government and people of the State. Where this power 
is invoked the duty may be cast upon the President in giving direc¬ 
tions for the employment of the land and naval forces to decide be¬ 
tween conflicting claims of rival governments. His decision may be 
right or it may be wrong. Congress can interfere and reverse his 
decision. 

But although this power was invoked by Governor Packard, one 
of the claimants of the office of governor, and also by what is known 
as the Packard legislature, the President did not interfere, nor did 
he undertake to settle the dispute. General Grant, and after him 
President Hayes, taking precautions to prevent any actual outbreak, 
left the whole controversy to be settled by the State of Louisiana. 
Congress was then in session, but by neither body was any act done 
looking to a settlement. Congress left the State to decide which was 
its lawful government. 

So also the Senate of the United States, as an incident to its power 
and duty to judge of the election, qualiflcations, and returns of its 
members, may have jurisdiction to determine, in the absence of any 
ot^er authoritative decision, which of two bodies claiming legislative 
power and sending Senators to represent the State here is the true 
and legal Legislature. But the right to make such a decision is only 
an incident to another right, a necessary step to the performance of 
a duty, and cannot be exercised contrary to facts or contrary to the 
decision of that tribunal which is at last the supreme arbiter. 




13 


The Senate hesitated to perform this delicate task of deciding be¬ 
tween the rival governments, for it appears from its Journal that Mr. 
Kellogg, who had been chosen by the Packard legislature, pre¬ 
sented his credentials, and on the 4th"March, 1877, offering to take the 
oaths prescribed by law, asked to be seated. His application, how¬ 
ever, was refused, and the credentials were sent to a committee. 

We have thus seen that neither the President, nor Congress, nor the 
Senate decided between these rival bodies. What authority then 
could settle and settle conclusively which was the legal and true Leg¬ 
islature ? I answer, the State herself. 

No one will contend that any authority acting under the Constitu¬ 
tion did settle the question, nor indeed, except for the purposes and 
under the conditions that I have named, that the Constitution inter¬ 
feres with or pretends to interfere with this just and absolute power 
of the State. 

If the State has settled the question, and settled it finally and irre¬ 
vocably, what power or authority or jurisdiction can reverse or annul 
its decision f The President cannot do it; Congress cannot do it; the 
Senate cannot. From its action there is no appeal. 

Arguing the Rhode Island case of Luther vs. Borden, Mr. Webster 
truly said: 

The decision of Ehode Island hy her Legislature, by her executive, hy adjudi¬ 
cation of her highest court, has shut up the whole case. Do you propose—I will 
not put it in that form—^but would it be proper for this court to reverse their ad¬ 
judication ? That declares that the people of Ehode Island knew nothing of her 
“ people’s constitution.” Is it possible for the court to know anything about it? 
It seems to me that if there were nothing else in the case the proceedings of Ehode 
Island herself must stop every mouth in the court and out of it. Rhode Island is 
competent to decide the question herself, and everybody else is bound by her decision .— 
Works, volume 6, page 239, 

And Mr. Morton, of Indiana, expressed in stronger and more elab¬ 
orate phrase the same opinion in a report upon the contest for a seat 
in this body between Ray and McMillin, from Louisiana, in the year 
1873. His words are : 

The Constitution says that the Senate of the United States shall consist of two 
Senators from each State, chosen by the Legislature thereof for six years. The 
manner of constituting the Legislature is left absolutely to each State, and the 
question of its organization must be left to be decided by such tribunals or regu¬ 
lations as are provided by the constitution and laws of the State, and the only 

S uestion about which the Senate may inquire in determining the admission of 
enators is whether they have been chosen by the Legislature of the State, that 
legislature recognized by the State or whose organization has been recognized by other 
departments of the State government. Under our complex system of government 
all questions of State governments under their own laws must be left to the decis- 
ionof theState tribunes createdforthat purpose and when such decisions have^been 
made they must be accepted by the Government of the United States in their deal¬ 
ings with such States. It is no answer to this to say that in a particular case such 
tribunals will or have decided wrongfully. The Government of the United States 
has no right to reverse their decision so long as the State possesses a government 
republican in its form. 

This is the deliberately recorded opinion of one of the great leaders 
of the republican party," and a great leader in this Chamber. And 
who can by logic or reason disturb the solid foundation of this opin¬ 
ion ? It is" based upon constitutional and public law. It has its con¬ 
ception in the fundamental truth that these States are and must be 
self-governing as to all matters and all questions not delegated by 
the people to the Government of the United States ; that they have 
the right and power at any time to alter, amend, or change their own 
governments, to administer their own affairs, to provide for every 
department of State administration, to call an executive, a legisla¬ 
ture, a judiciary into being, to determine how all questions of con- 


14 


troverted authority shall be settled, and pass upon every conflict be¬ 
tween different departments and every conflict between rival claim¬ 
ants to any authority. The methods by which this shall be done 
cannot be reviewed or reversed by any tribunal. The only inquiry 
that can be made is, What has the State decided—how has the State 
decided ? 

The decision may have been unwise ; it may have been made, to 
use Mr. Morton’s expression, “ wrongfully,” but, as he has put it— 

The Governraent of the United States has no right to review their decisions sa 
long as the State possesses a government republican in its form. 

Now, has this question been presented to the State of Louisiana, 
and has the State decided it? 

In January, 1877, there were two claimants of the ofGce of gov¬ 
ernor and two rival bodies claiming to be the Legislature of the State. 
One of these bodies declared that Nicholls had been elected governor 
by the people, and inducted him into office. The other declared that 
Packard had been elected, and went through the form of his inaugu¬ 
ration. All recognized the same constitution and professed obedience 
to.the same laws. 

The Packard legislature assembled at the State-house. The doors 
and entrances to the bnilding were barricaded. Armed policemen to 
the number of hundreds stood ready to prevent the people of the 
State from crossing the threshold. A detachment of United States 
troops was stationed close by to protect the inmates. For weeks 
this body occupied this stronghold, eating, sleeping, and living within 
its walls. Beyond the lines of their fortification they possessed no 
authority. Once and once only during their brief existence as a leg¬ 
islative body they attempted to enforce an act of legislation beyond 
the portals of their prison-house. But their agents were arrested by 
the strong arm of the law invoked by their rivals, and the endeavor 
failed. They went through the form of directing warrants to be issued 
upon the treasury in settlement for their services as legislators, and 
these remain unpaid to this day. They chose two Senators to repre¬ 
sent the State in the Senate of the United States, and their work was 
ended. One by one they stole away, and those among them who had 
been truly elected by the people joined the Nicholls legislature. There 
they renewed their oaths to support the constitution of the State, 
acknowledged that their first attempt at organization was a sham 
and a fraud, and joined with the other body in electing Mr. Spofford 
to the seat in the Senate which he now claims. 

In all our history no more glaring attempt has been made by fraud 
and deceit to cheat the people of their just rights and impose upon 
them a government contrary to their choice. In 1872 in the same 
State the people had elected McEnery to be their governor and a dem¬ 
ocratic Legislature. Mr. Kellogg had been the republican candidate 
and claimed the executive office for himself and that a majority of 
his candidates had been elected to the Legislature. He applied to a 
drunken judge of one of the courts of the United States to assist him 
in gaining possession of power. The process of the court was freely 
issued, and the President of the United States, misled no doubt by the 
advice of his law officer, lent the great power of this Government and 
its military arm to the recognition and maintenance of the orders and 
decrees of the court. The people were defrauded and Mr. Kellogg 
and his legislature were firmly seated in authority. 

Again, in 1874 the people had elected a majority of the legislators 
in opposition to Governor Kellogg’s party. But the minority, with 
the help of the military forces of the Government, succeeded in effect- 


15 


ing an organization, and the singular spectacle was presented of an 
officer wearing the uniform of the United States purging a State Leg¬ 
islature and driving from it those who had been elected by the people. 
Having twice succeeded by force ^.nd fraud in defeating the will of 
the people as expressed at the ballot-box, and wishing to gain a place 
here, Mr. Kellogg made a third attempt to organize by fraud another 
legislative body, which, as we have seen, maintained a sickly exist¬ 
ence and then perished from want of vital force. Public attention 
had been drawn to the consideration of affairs in Louisiana. An intel¬ 
ligent public opinion expressed, in language fierce with indignation, 
its sense of the wrongs that had been clone to the people of that un¬ 
happy State, and the President wisely left it to settle its own affairs. 
The Packard legislature quietly separated. No act done by it now 
has, or ever had, any authority in the State, or hcis been recognized 
by any department of government. State or national. The man whom 
it inaugurated as governor went abroad, and there holds an office from 
the Federal Government. The only place in America where life or 
vigor has been given to any act of that Legislature is here in this 
Chamber. Here it is gravely said that that body was the Legisla¬ 
ture of the State of Louisiana. 

But let us look for a moment at the other body—the Nicholls leg¬ 
islature. It assembled at the time required by the constitution and 
laws; it was duly organized, and inducted into office the person 
elected as chief executive. Strong in’ the affections and confidence 
of the people, it sat with open doors, and to its chambers all were 
invited. It proceeded with all the gravity of earnest conviction and 
with the consciousness of lawful authority to the business of legis¬ 
lation. It was recognized by the people, by the courts, and by all the 
civil officers of the State. It levied and collected taxes ; it created 
courts whose jurisdiction has never been questioned, and which are 
to-day open to suitors for the enforcement of rights and the redress 
of wrongs. It enacted laws that are enforced by courts. State and 
Federal. 

Under the authority of the Nicholls government the people of Lou¬ 
isiana have lived in peace and quiet now since January, 1877. Every 
department of that government is in active being, performing every 
duty and discharging every proper function. Under laws enacted by 
its legislature senators and representatives to the State Legislature 
are elected, and members of the Federal House of Representatives. 
The lawful successor to the Nicholls legislature chose a Senator to this 
body whose credentials bore the broad seal of the State of Louisi¬ 
ana affixed by Governor Nicholls. 

Who can, then, question the acts of the Nicholls legislature ? The 
President cannot; Congress cannot. Who can question the lawful¬ 
ness of the Nicholls government ? If Packard were to return to Lou¬ 
isiana and incite the people to domestic violence, could the President 
or Congress refuse to Governor Nicholls or his legislature the assist¬ 
ance guaranteed by the Constitution on the ground that he is not the 
lawful governor of the State ? If such a call had been made two 
years ago by the legislature that elected Mr. Spofford, could the appeal 
have been neglected ? No Senator is bold enough to answer affirma¬ 
tively; and why! Because the State of Louisiana has settled all 
these questions for herself. She has decided that Nicholls was her 
lawful governor, and that the Nicholls legislature was the lawful 
Legislature. She enforces laws placed upon the statute-book before 
either of these claimants was chosen, and thus has settled that the 
Nicholls legislature was from the beginning the only true legislature. 


IG 


The State having thus settled the question, everybody else is con¬ 
cluded. This, in the words of Mr. Webster, “ must stop every mouth.” 
The Senate is concluded like everybody else. Authority to judge 
of the election of a Senator does uQt confer authority to decide that 
to be a legislature which is not a legislature any more than it confers 
authority to decide that to be law which is not law. The Senate is 
under the same obligation with the President and Congress to recog¬ 
nize the political organization that the Constitution recognizes as the 
State—that organization with which the Government has Federal 
relations and which in virtue of those relations is entitled to repre¬ 
sentation. The people of that organization have the right to repre¬ 
sentation in the House of Representatives; and the Legislature which 
is part of it, and no other body, can choose two persons to serve the 
State in the Senate. The decision 'of the State, to use the words of 
Mr. Morton, may have been “ wrongful,” but if the State has made the 
decision that decision must be accepted as final, and “ the Government 
of the United States has no right to reverse^’ it as long as the State pos¬ 
sesses a government republican in form. 

Upon this ground alone we can safely rest the cl aim of Mr. Spoftbrd 
to the seat, for to this conclusion every impartial mind must come. 
But we are not content to do so. We are prepared to show, and the 
documentary evidence within the reach of every Senator will estab¬ 
lish that the Kellogg legislature did not derive its authority to as¬ 
semble as a legislative body from the people. Its only claim to 
authority rests upon the fraudulent acts of a returning board whose 
crimes are known to the whole country. 

I have referred briefly to the canvass in Louisiana in 1876. The 
people of that State, inspired with the hope of a change of adminis¬ 
tration at the Federal city, and animated with the expectation of 
relief from the thralldom in which they had been held for so many 
years, put forth the most energetic etibrts to gain a majority. These 
efibrts were met with equal energy by Governor Kellogg and his 
associated band of adventurers. They were loath to yield the offices 
of dignity and honor, and the treasury which had fed and strength¬ 
ened them through a long x>eriod of misrule, of license, and plunder. 
Promptlv their forces were organized, unscrupulously they employed 
every agency that arbitrary power, and cunningly devised"machinery 
placed at their disposal. Confident of success, they laughed at the 
despairing struggle of a once free but then subjugated jieople. They 
boldly proclaimed that they would come off victors, for experience had 
taught them the value of their methods. But when the election was 
over it was discovered not only that Packard was beaten for governor, 
but that a majority of the democratic candidates for senators and rep¬ 
resentatives had been elected to the State Legislature. This was a 
cruel disappointment to. Governor Kellogg, who was a i)rospective 
candidate for a seat in the Senate of the United States. His life in 
Louisiana had been the life of an office-holder. He had been connected 
with politics and official station from the time he went there. Suc¬ 
cess had attended him in every effort, and he had looked with confi¬ 
dent expectation to a seat in this great council of the nation. The 
people now had decided against him, and it became necessary to resort 
again to the machinery provided by the election laws to enable a mi¬ 
nority part.y to retain possession of i^ower and control the great offices 
of State. This machinery had been used before, and its use and value 
were well known to the hordes of bad men who for so long a time had 
rioted in the luxury of ill-gotten place. It had been denounced by 
congressional committees, who had published to the world the infamy 


17 


of its methods, but in the extremity to which they were reduced Gov¬ 
ernor Kellogg and his associates did not hesitate to use it, and, as 
will be shown, they used it with a boldness that almost concealed their 
crime. Their purpose was strengthened by the ready counsel of others, 
for it so happened, and unfortunately for the oppressed people of Lou¬ 
isiana, that its electoral vote would decide the result of a great na¬ 
tional contest. 

The election laws gave to the governor power to appoint a regis¬ 
trar of voters for each of the fifty-seven parishes of the State and 
eighteen wards of the city of New Orleans. These registrars appointed 
three commissioners of election for each of the seven hundred poll¬ 
ing places, and besides were required to appoint one or more consta¬ 
bles to keep the peace at each polling place. The registrars had the 
power to admit reject the name of any voter. The law forbade 
any court to interfere with the exercise of this power. In every in¬ 
stance a republican was appointed to be registrar, and at least two of 
the three commissioners of election were of the same party, as was 
true of the constables whose number was not limited. 

Mr. KELLOGG. Will the Senator allow me one moment to correct 
him ? 

Mr. BAILEY. I prefer not to be interrupted. 

Mr. KELLOGG. Tlie Senator has fallen into so gross an error that 
I should like to correct him. 

Mr. BAILEY. If I have fallen into an error the Senator will have 
ample opportunity to correct it. I cannot stop to take notice of every 
matter, and if in some unimportant particular there may be a mistake 
it can be corrected hereafter, and no one will more cheerfully join in 
making that correction than myself. 

Mr. KELLOGG. No doubt of it. 

Mr. BAILEY. It will thus be seen that the wliole election ma¬ 
chinery of the State was under the absolute control of the governor, 
and including registrars, commissioners of election, and policemen, 
not less than two thousand eight hundred persons of his own party 
and his own adherents were connected with it. To this number must 
be added fourteen hundred supervisors of election appointed by the 
United States court at New Orleans, two for each poll, and twenty- 
three hundred deputy marshals appointed by the marshal of the dis¬ 
trict, and upon the advice of the Attorney-General at Washington 
large detachments of the Army were scattered through the State as 
bystanders, to serve as a imsse comitatas, if the marshal should find 
use for them. 

In addition to this, the republican committee had sent to each reg¬ 
istrar a statement showing the number of colored voters in his par¬ 
ish, urging that he should exert himself to have their names regis¬ 
tered, and bring them to the polls to vote the republican ticket, and 
stating that his claims to recognition for official station would depend 
upon the fidelity with which he did this partisan work. But, not con¬ 
tent with these preparations, within one week of the day of election, 
either by the instigation of the governor, or his party friends, and he 
to profit by the act, more than ten thousand warrants were issued out 
of the circuit court at New Orleans for the arrest of citizens who were 
alleged to have falsely registered as competent voters. In this num¬ 
ber were included many of the oldest and most respectable citizens, 
and among them was a Representative in the Congress of the United 
States. The affidavits upon which the warrants were issued were made 
by wholesale and by two policemen. Thirteen hundred of these cases 
were tried before the day of election and the warrants dismissed, but 
2 BA 




18 


the remainder for want of time and for other reasons were riot heard, 
and more than rive thousand citizens were excluded from the ballot- 
box. So palpable was the fraud, that when the commissioner pre¬ 
sented his bill for more than |15,000 for these services. Judge Billings, 
of the circuit court of the United States, told him, “ On the face of 
these papers there is a gross fraud, and I will not certify a cent.” 

As an atonement, however, for this successful attempt to rob so 
many thousands of white men of the ballot, they issued in the city of 
New Orleans to the blacks, whose total population was only fifty-seven 
thousand, more than twenty-three thousand certificates of registra¬ 
tion, upon each of which, owing to the shrewdly-contrived election 
laws, a ballot could be cast. There were cases where the same person 
held half a dozen of these certificates, and could rejjeat his vote by 
going from one polling-place to another. 

But notwithstanding all this, and the willing aid given by the At¬ 
torney-General and Secretary of War, and although an army of more 
than seven thousand registrars, commissioners, constables, super¬ 
visors, and deputy marshals were scattered throughout the State 
under the pretense of preserving the peace and guarding the purity 
of the ballot-box, the people of Louisiana decided against Governor 
Kellogg and by a majority exceeding 8,000 in a popular vote of 
160,000, the largest ever cast in the State and greater in proportion 
than almost any other State, elected a democrat to be governor and 
a majority of democrats to the Legislature. 

Profound x)eace reigned everywhere. The democrats had been de¬ 
prived of the fruits of victory in 1872 and 1874 under the pretense of 
violence and intimidation. They had seen the cunningly-devised 
machinery of the returning board set at work upon more than one 
occasion to fabricate returns that defeated the ex];)ressions of the bal¬ 
lot-box. They exhorted their friends in every ward and parish to 
use every effort to bring every voter to the polls and to afford no 
shadow of excuse to charges of intimidation or violence. No such 
peaceful election had been known in Louisiana since reconstruction 
was inaugurated. No such peaceful election was seen in any one of 
the States of the Union. Although by the election laws it was the 
duty of each of the registrars to report every act of intimidation and 
violence'occurring during the progress of registration, and of every 
commissioner of election to report similar misconduct on the day of 
election and to send these reports with the compiled returns to the 
returning board within forty-eight hours of the close of the election, 
and although these registrars and in every instance two of the three 
commissioners of election were republicans, yet such a report was 
made from only a single parish, and that a report of republican 
frauds. 

The result was astounding; the defeat was crushing. In other com¬ 
munities the verdict of the peoide would have been accepted by even 
the most unscrupulous of partisans as a finality. The boldest among 
them would have shrunk from encountering an indignant and out¬ 
raged public opinion, and would have stood abashed by traditional 
reverence for the sacredness of the ballot; but such traditions had 
been banished from Louisiana for almost a generation. The horde of 
adventurers who had hastened to that political El Dorado had so 
often been confronted by adverse ballots and so often by fraud, by 
the aid of returning boards, of Federal judges, and Federal power had 
wrested victory from defeat, that they did not despair of success. The 
returning board was still in reserve. It was brought to the front, 
and begun its subtle and destructive work. 


19 


By tlio la ws of tlie State this board was to be composed of fi ve persons 
chosen from all political parties. At the time its aid was invoked 
its number was not full; four republicans, and they representing the 
worst elements in the republican party, were in charge. The demo¬ 
crats, instructed by experience of their methods in the past, and re¬ 
membering that on other occasions they had not scrupled to exercise 
power without regard to truth or justice, earnestly insisted that a 
fifth member should be added, and, as the law required, belonging to 
the democratic party. But this reasonable and lawful request was 
refused. It did not suit the purposes of the defeated and disappointed 
office-holders to have an impartial or unfriendly witness to their pro¬ 
ceedings. Thus, in defiance of the i)lain commands of the very law 
which brought the board into being, they begun the work mapped 
out for them by their masters. 

This power of this board, although semi-judicial in its nature, was 
limited in extent; they had the power to examine the returns from 
the different parishes, and it was made their duty to correct and tabu¬ 
late the votes cast at each poll. To this general and plain rule there 
were two exceptions, and two only. 

First. When the commissioners of elections at a poll certified that 
“ on the day of the election" there had been “ any riot, tumult, acts of 
violence, intimidation or disturbance, bribery or corrupt influences,” 
“ at or near" any poll or voting-place, preventing or tending to pre- 
• vent a fair, free, peaceable, or full vote. 

Second. Where the registrars, whose work was to be completed nine 
days before the election, certified that any of the causes before re¬ 
cited, at or near the places of registration or revision of registration, 
prevented or tended to prevent a fair, free, peaceable, and full regis¬ 
tration of all the qualified voters of the parish. 

The law required the commissioners of election, where such riot, 
tumult, &c., prevailed on the day of election, to make, in duplicate 
and under oath, a clear and full statement of all the facts relating 
thereto, corroborated under oath by three respectable citizens, quali¬ 
fied voters of the parish. One of these duplicates was to be given to 
the supervisor of registration, and by him was to be sent with his 
consolidated return to the returning board. 

The supervisor of registration was required to make a like state¬ 
ment of riot, tumult, intimidation, &c., verified in like manner by the 
oaths of three respectable citizens and qualified voters of the parish. 

The law required the commissioners of election within twenty-four 
hours after the closing of the polls to make out and deliver duplicate 
returns of the election ; one to the supervisor \)f registration and one 
to the clerk of the district court of the parish. , 

The supervisor of registration was required within twenty-four 
hours thereafter to consolidate the returns and to return them to the 
returning board, together with a copy of any statement as to violence, 
disturbance, &c., or other offenses specified above, ail to be securely 
sealed. 

The returning board was required to canvass and compile the state¬ 
ment of votes made by the commissioners of election and make returns 
to the secretary of state. Whenever from any poll or voting place 
a statement of any supervisor of registration or commissioner of elec¬ 
tion, made in form and at the time required above, was received, it 
was made the duty of the board to determine the facts, and if not 
convinced from the statements filed, before referred to, it was au¬ 
thorized to hear other testimony. If satisfied upon all the testimony 
that a fair and peaceable election had not been held, it w'as author- 


20 


izecl to cast ont the vote at a polling place or of the entire parish, 
as the facts might warrant. 

This brief statement of the duties of the board and the extent of its 
authority shows that the task it undertook presented extraordinary 
dijBHculties. The registrars and commissioners of election had simply 
counted and tabulated the votes at the polls and of the parishes. They 
had made no statements or complaints of riot, fraud, intimidation, 
violence, or other fact that authorized the board to do more than “ can¬ 
vass and compile ” the votes, and they did not make the statements 
for the very plain reason that the facts did not exist. There was no 
ground upon which the returning board could base its semi-judicial 
investigation. The duty of its members was to “ cam'ass and conqnle ’’ 
the votes and issue certificates to the successful candidates. 

But the veterans who had borne the brunt of the tierce conflicts in 
1872 and 1874 were not discouraged by the impediments that stood in 
the way. Experience had taught them how easily they could be re¬ 
moved, and they announced their readiness to begin the work. Po¬ 
litical harlots with their panders flocked in countless numbers to the 
capital of the State, ready to sell their virtuous oaths for a price. 
Protests and certificates were manufactured by the score many days 
after the time when by law they were to be tiled. Affidavits were 
written by hundreds and thousands supporting these false protests 
and certificates. Jewett, the secretary of the republican committee— 
the same who gave warning to the registrars that their claims to rec¬ 
ognition by the incoming administration depended upon their suc¬ 
cess in registering colored voters and bringing them to the polls— 
swears that he himself wrote three of these certificates. Other pens 
were busy and other brains were fertile. A vast pile of such stuff 
was heaped before the board. Its members worked with gleeful spirit, 
for the base work was well suited to their tastes and its results prom¬ 
ised great rewards—nor have they been disappointed in their reck¬ 
oning. When their labors were ended it was found they had more 
than met the expectations of their employers. The verdict of the 
people was set aside. Packard, who had been beaten eight thousand 
votes, was declared to be governor-elect. Candidates for the senate 
and house of representatives who had been rejected by large majori¬ 
ties were announced as successful. 

Three senators and ten representatives discarded at the polls were 
granted certificates. Hamlett and Blunt and Weber were returned 
as senators. Barringham and Brewster from Ouachita; Sheldon and 
Blair from Morehouse; Holt, Bird, and Lane, from West Baton Rouge; 
Johnson from He Soto; and Early and Swazie from West Feliciana, 
were returned as representatives,‘although all were beaten. Certifi¬ 
cates of election were given them, and on the 1st of January, 1877, 
when by the constitution the Legislature was to assemble, these men 
appeared, claimed, and were admitted to seats. 

Thirty-six senators and one hundred and twenty representatives com¬ 
pose the Legislature of the State, and by the constitution a quorum 
necessary for organization or the transaction of business consists of 
a majority in each body. In the Packard senate sixteen duly elected 
senators were present, and fifty-eight duly elected representatives. 
To those numbers were added the three senators and ten representa¬ 
tives created by the act of the returning board; in each house an or¬ 
ganization was eff'ected, and Governor Kellogg was notified of the 
fact. On the day fixed by the act of Congress they began to vote for 
Senator to represent the State in the Senate. Two of the State sen¬ 
ators had deserted them, but a sufficient number of representatives 


A 


21 


went into the joint convention to make a majority of the whole num¬ 
ber of both bodies. Mr. Kellogg was thus chosen, and this is the 
foundation of his claim to a seat here. 

Mr. President, I have endeavored to state with brevity the facts 
connected with the canvass in 1876 and its result; the action of the 
returning board and the manner of organizing what is known as 
the Packard legislature. The facts cannot be disputed. They are 
beyond controversy. I invite Senators who uphold the pretensions 
of Mr. Kellogg to examine the facts and point out wherein they are 
misstated. 

But, sir, they will not undertake to meet the facts or to discuss this 
matter upon its merits. They will endeavor to-day, as they have 
done in the piist, to shelter this pretender to a seat in the Senate under 
the protecting edi<\t.of a returning board. ^SThey will claim, as was 
done on another memorable occasion, that nothing “ aliunde” the rec¬ 
ord shall be heard, and ask the benefit of the plea res adjndicata. Ar¬ 
gument upon the facts and plain expositions of constitutional law are 
answered by warnings to Senators from a particular section that they 
are upon trial before the American people, who will judge of the sin¬ 
cerity of their vows of fidelity to the Constitution by the alacrity 
with which they yield the right of thought and prove themselves 
false to duty, to manhood, and to our common country; for the mi¬ 
nority of the Committee on Privileges and Elections, which disdained 
to state a fact or otherwise to justify its action, has declared— 

That the men whose professions of returning loyalty to the Constitution have been 
tnisted by the generous confidence of the American people, are now to give evidence of 
the sincerity of their vows. The people will thoroughly understand this matter and 
vjill not be likely to be deceived again. 

Sir, we want the American people to understand this matter. We 
believe that the people are sui^erior to this sectional clamor, and will 
demand that the constitutional rights of one of the States of this 
Union shall be vindicated and her wrongs redressed. 

Let us come back to the point before us. Upon the facts stated, 
and they cannot be disputed, is Mr. Kellogg entitled to the great 
position he claims? As I have said before,the determination of this 
question involves the inquiry whether the body of men that elected 
him was the Legislature of the State of Louisiana ? If it was not 
the Legislature, then under the Constitution he has no status here, 
for it is expressly declared that Senators in Congress shall be chosen 
by the Legislatures of the States. 

"Now, if the body that sent him here had been the only body claim¬ 
ing to act as the Legislature of the State; if its authority and power 
had been recognized by the other departments of the State govern¬ 
ment, and if it had made laws that were recognized and binding 
upon all the people of the State, I would not question, but would 
affirm the validity of the act; for in such case the State through 
her departments having settled its legislative authority, “everybody 
else ” is thereby concluded. Nor would it be permissible to institute 
an inquiry into the methods of its organization or the composition of 
the body. The decisions of the Legislature itself upon every matter 
of that kind would be conclusive and binding on all the world. 

But the case supposed is not presented. The Packard legisla¬ 
ture did not have undisputed possession of the field of legislation. 
What is known as the Nicholls legislature claimed that it was the 
lawful Legislature. In that body undoubtedly appeared fifteen sen¬ 
ators and forty-four representatives certified to have been elected by 
the returning board. They were joined by other persons who were 





in fact elected by the people, but rejected by the returning board. 
This body, or rather a senate and house of representatives, was organ¬ 
ized. After its organization its strength was increased by the volun¬ 
tary submission of the Packard legislature, all of whose members, 
duly elected, joined it. And Mr. Spofford was chosen, all the duly 
elected members of both bodies joining in making the choice. Now, 
which was the true Legislature of the State ? 

This question is not of the first impression. It was once before 
presented to the Senate in the contest between Spencer and Sykes, each 
of whom claimed to have been chosen to be Senator by the Legislature 
of Alabama. The question was referred to a committee and that com¬ 
mittee made a report, from which it appears that two bodies claimed 
to be the Legislature of the State. One of them had a quorum of 
members certified to have been elected by the retur;i 2 Jhig boards. The 
other body had a quorum cojiiposed in part of members certified by 
the returning boards and in part of persons actually elected by the 
people, but whose election was denied by the returning board. The 
case and the question in these particulars were identical with the 
one now under consideration. The facts and the conclusions of the 
committee were stated in a report prepared by Mr. Carpenter, then 
as now a Senator from Wisconsin, in a manner so clear as not to admit 
of being misunderstood. I ask the Secretary to read the passage I 
have marked from that report, beginning on page 0. 

The Chief Clerk read as follows : 

When we consider that all the forms prescribed by law for canvassing and cer¬ 
tifying an election, and for the organization of the "two Houses, are designed to 
secure to the persons actually elected the right to act in the offices to which in fact 
they have been elected, it would be sacrificing the end to the means were the Sen¬ 
ate to adhere to the mere form, and thus defeat the end which the forms were in¬ 
tended to secure. 

The persons in the two bodies claiming to be the senate and house of represent¬ 
atives who Amted for Spencer constituted a quorum of both houses of the members 
actually elected; the persons in the State-house legislature who voted for Sykes 
did not constitute a quorum of the two houses duly elected, but a quorum of per¬ 
sons certified to have been elected to the two houses. Were the Senate to hold 
Sykes’s election to be valid, it would follow that erroneous certificates, delivered to 
men conceded not to be elected, had enabled persons who in fact ought not to vote 
for a Senator to elect a Senator to misrepresent the State for six years. On the 
other hand, if we treat the court-house legislature as the legal Legislature of the 
State, it is conceded that we give effect to the will of the people as evidenced by 
the election. So that, to state the proposition in other words, we are called upon 
to choose between the form and the substance, the fiction and the fact; and, con¬ 
sidering the importance of the election of a Senator, in the opinion of your com¬ 
mittee the Senate would not be justified in overriding the will of the j)eople, as 
expressed at the ballot-box, out of deference to certificates issued erroneously to 
persons who were not elected. 

In the opinion of your committee it is not competent for the Senate to inquire 
as to the right of individual members to sit in a legislature which is conceded *tb 
have a quorum in both houses of legally elected members. But, undoubtedly, the 
Senate must always inquire whether the body which pretended to elect a Senator 
was the Legislature of a State or not; because a Senator can only be elected by the 
Legislature of a State. In this case, Spencer having been seated by the Senate, 
and being prima/ftcie entitled to hold the seat, the Senate cannot oust him with¬ 
out going into an inquiry in regard to the right of the indiAudual persons who 
claim to constitute the quorum in these respective bodies at the court-house and 
at the State-house. We cannot oust Spencer from his seat without inquiring and 
determining that the eight or nine individuals who were elected were not entitled 
to sit in the Legislature of the State because they lacked the certificates. But if 
the Senate can inquire into this question at all, it must certainly inquire for the 
fact rather than the evidence of the fact. It cannot be maintained that when the 
Senate has been compelled to enter upon such an examination it is estopped by 
mere prima facie evidence of the fact, and the certificate is conceded to be nothing 
more than prima facie evidence. But the Senate must go back of that to the fact 
itself, and determine whether the persons clairaiug to hold seats were in fact elected. 
When we do this we come to the conceded fact that these persons, lacking thecer- 


23 


tiftcate, had in fact been elected, and that the persons wlio claimed to be the quo¬ 
rum of the two houses were in fact the persons who, in virtue of the election, were 
entitled to constitute the quorum of both houses. 

Mr. BAILEY. The republican majority of the Senate adopted the 
reasoning and conclusions of the committee, and, rejecting Sykes, 
who had been chosen by the Legislature assembled and organized 
under certificates from the returning boards, admitted to the seat 
Mr. Spencer, who was chosen by the Legislature that the committee 
claimed was actually elected. Now, in what respect does that case 
differ from the one under consideration ? I affirm, and I make the 
affirmation with all earnestness and sincerity, challenging contradic¬ 
tion from any part of this Chamber, from Senators of all parties and 
from every section, that the only difference is that Spencer was a re¬ 
publican, while Spoftbrd is a democrat. 

The case of Spencer is directly in point. No appeals to passion or 
prejudice or sectional feeling, no effort to revive the memories of our 
unhappy divisions, nor the threatened denunciation of those who “ are 
now to give evidence of the sincerity of their vows,” can change the 
facts. The precedent exists. The argument of the committee in the 
Spencer case, as the argument in this case, is conclusive. Its princi¬ 
ples are to be found in the American idea of government; in the rec¬ 
ognition of the fact that inspectors and canvassers of ballots, return¬ 
ing boards, tabulated statements, certificates, and all the machinery 
of elections are intended to protect the ballot, to uphold and main¬ 
tain the recorded will of the people. The verdict of the people thus 
declared is to be respected in every portion of our great country, in 
Louisiana as in Maine, in Florida as in Oregon. 

The law of majorities is the one general and universal law of 
these American States. It commands obedience from all alike, from 
the Senate as from the people. Upon its recognition depends not only 
the purity of elections but the perpetuity of our institutions. With 
the spread of democratic ideas it is fast becoming the law of all civil¬ 
ized peoples. It will not be confined to any time, to any country or 
any race. It will reach to the remotest regions where free govern¬ 
ment shall be found. And men now living may see realized the pro¬ 
phetic aspiration of the Roman orator and sage: 

Xee erit alia lex Romce, alia Athenis; alia mine et alia posthac. Sed et ornnes 
gentes, et omni tempore, una lex, et nempiterna et univeraalis, prcevalebit. 


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